THINKING OUT LOUD

Religion and the Law

Some years ago, at the height of social-religious unrest in Ambon, Indonesia, I was in a taxi driven by an articulate Indonesian in his late forties. He was evidently religious in his orientation for I noticed that he had a beautiful Arabic calligraphic ornament hanging from his rear view mirror. I recognised the script ‘Allahu Akhbar’ to mean ‘God is great’ and asked if I had read it correctly. He replied that it was exactly as I had read it, and asked if I were a Muslim. I told him that I am a Christian, and we began a Muslim-Christian dialogue. Before I knew it, I had arrived at the lobby of my office and saw from the fare meter that I should be paying him $4.60. I gave him $5.00 and thanked him for the ride and the conversation, adding that he may keep the change. To my surprise, he returned me a change of $2.00. I asked him why he was under-charging me, to which he responded with a smile, ‘Kita sudah jadi sahabat’ meaning ‘We have become friends’.

That episode illustrates the joy of living in a multi-racial and multi-religious society. In a society where people of faith respect one another, multi-religious dialogue is not only possible, it can be pleasurable.

Entrenched Right to Religious Freedom

Article 15 of our Constitution guarantees freedom of religion for all:

(1) Every person has the right to 
 profess and practice his religion 
and to propagate it.

(2) No person shall be compelled to 
 pay any tax the proceeds of which 
 are specially allocated in whole 
 or in part for the purposes of a 
 religion other than his own.

(3) Every religious group has the right (a) to manage its own religious 
 affairs;

(b) to establish and maintain institutions for religious or charitable purposes; and

(c) to acquire and own property and hold and administer it in accordance with law.

(4) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.

Freedom of religion, not unlike freedom in general, is not an absolute. Article 15(4) delimits its expression by aligning its activities to the compelling state interests of public order, public health and morality. And rightly so, for the history of religion is replete with the subversions of public order, public health and morality in the name of one deity or another.

Limitations to Religious Freedom

To pre-empt and/or prevent further subversive acts in the name of religion, s 8 of the Maintenance of Religious Harmony Act (Cap 167A) empowers the Minister to make a restraining order against any religious leader where he is satisfied that that person has committed or is attempting to commit certain acts against public peace and order. These acts include:

1 causing feelings or enmity, hatred, ill-will or hostility between different religious groups;

2 carrying out activities to promote a political cause, or a cause of any political party while, or under the guise of, propagating or practising any religious belief;

3 carrying out subversive activities under the guise of propagating or practising any religious belief; or

4 exciting disaffection against the President or the Government while, or under the guise of, propagating or practicing any religious belief.

An order made under the Act may restrain a religious leader from:

1 addressing orally or in writing any congregation, parish or group of worshippers or members of any religious group or institution on any subject, topic or theme as may be specified in the order without the prior permission of the Minister;

2 printing, publishing, editing, distributing or in any way assisting or contributing to any publication produced by any religious group without the prior permission of the Minister;

3 holding office in an editorial board or a committee of a publication of any religious group without the prior permission of the Minister.

Anti-Establishment of Religion Clause

Article 15(2) is equivalent to an anti-establishment of religion clause in that no one is to be compelled by law to contribute financially to the support of a religion. It, however, envisages that a person may voluntarily give to support the religion of his own choosing. This is in contrast to countries like Great Britain and Germany where a portion of the taxes paid to the state is specially allocated for the purpose of supporting a state religion. In such situations, it is observed that state-supported religion does not appear to be necessarily vibrant either in its numerical growth or personal religious practices. On the contrary, it appears that both in Great Britain and Germany, the state churches are in serious decline. Genuine spirituality, after all, is an individualistic act of personal faith and cannot be legislated. If one is compelled by law to adhere to any particular faith, it can only become mechanistic and perfunctory, exhibiting neither vibrancy nor dynamism.

The First Amendment to the US Constitution contains an anti-establishment of religion clause: ‘Congress shall make no law respecting an establishment of religion’. It also contains, on the other hand, a wide non-prohibition clause: ‘or prohibiting the free exercise thereof.’ There are numerous landmark cases decided by the Supreme Court on these two limbs of the First Amendment, on the one hand, upholding challenges to any semblance of the state favouring any particular religion, and, on the other hand, overruling any effort by the state to prohibit the practice of any religion whatsoever provided compelling interests of the state are not violated.

The US Supreme Court, for example, had ruled against the Amish in United States v Lee (1982) where a religious community asked the Supreme Court to grant them a free exercise exemption from paying social security taxes (similar to our Central Provident Fund). The Supreme Court found the government’s interest in denying the Amish an exemption to be compelling. Following Lee, the Supreme Court denied free exercise relief to a native American who sought relief to prevent the government from issuing a social security card (similar to our identity card) to his daughter; and an Orthodox Jew who sought to wear a yarmulke in violation of air force uniform regulations. Clearly, the ‘free exercise thereof’ is also not absolute.

Among the western countries where Christianity has been the keystone religion, US is perhaps the only country where Christianity appears to be still relatively vibrant. Some theologians and sociologists would attribute this phenomenon to the anti-establishment and non-prohibition clauses in the First Amendment. In Singapore, the vibrancy of all religions practised here are obvious. One could argue that the freedom to practise all religions without the state establishing any particular religion is a key factor to that phenomenon.

Non-Prohibition Legislations

There are some 40-odd private acts and ordinances in our law books, and more than half of them are about incorporation or amalgamation of religious institutions and the empowering of the trustees of such institutions. All the major religions in Singapore, namely Buddhists, Hindus, Sikhs, Christians and Muslims are represented in the legislations. Islam, though not an established state religion, is one religion where its adherents are also regulated by the Administration of Muslim Law Act (Cap 3). These legislations are in accordance with art 15(3) of the Constitution where every religious group is guaranteed a right to manage its own religious affairs, establish and maintain the institutions for religious and charitable purposes and to acquire and own, hold and administer property in accordance with law.

The Administration of Muslim Law Act (Cap 3) is applicable to all Muslims in Singapore. It is a wide-ranging legislation regulating the socio-economic and religious life of a person of Islamic faith. It establishes the Syariah Court for the administration of Islamic laws; it regulates marriage, married women and divorce, wills, probate and letters of administration; mosques and religious schools; religious zakat and fitrah; among others.

A sampling of the substance of some of these private acts and ordinances is rather instructive. The Ngee Ann Kongsi (Incorporation) Ordinance (Cap 370) was enacted to facilitate the Teochew clan’s desire to erect a temple for ‘the observance of the doctrines, ceremonies, rites and customs of the religions (other than the Christian religion) professed and maintained’ by the Teochew community who are members of the society. It is noteworthy that Christians are specifically excluded. In fact, the Declaration for Membership form in the First Schedule of the Ordinance specifies that only non-Christians need join.

In a truly multi-religious society, this exclusion is not a problem for Christians. After all, the society is established for the purpose of preserving and continuing the practice of Chinese religions amongst the Teochew community, and Christians should have no problems respecting that. A multi-religious society recognises the value of religious harmony which is very different from religious uniformity. To have harmony in diversity is a virtue, but to enforce uniformity of beliefs is a vice. Diversity of practice implies discrimination in a healthy sense, and no one who believes in religious diversity should object to it.

The Saint Andrew’s Mission Hospital Ordinance (Cap 376) incorporated the Anglican hospital in 1934. One of its objectives stated in s 5 is ‘to offer those who desire it, a knowledge of 
Christianity’. The Christian faith is offered to those who desire it; it is not offered to those who do not want it, let alone forced upon those who reject it. The constitutional ‘right to profess and practise his religion and to propagate it’ should be exercised with sensitivity, understanding and respect for the religion of others; the propagator must grant to the other religionist his right to reject his offer and to counter-propagate his religion. In this regard, it is good advice to recall the sayings of two great teachers of humanity from two different traditions. Jesus had taught his followers ‘to do unto others as you would want others to do to you’; and Confucius said practically the same to his followers: ‘Do not do to others what you would not want others to do to you’.

Religious Offences in the Penal Code

To add teeth to the constitutional right to practice and propagate religion, the Penal Code (Cap224) criminalises certain acts that militate against that right. Chapter XV of the Code is captioned ‘Offences Relating to Religion’. Section 295 criminalises the act of injuring or defiling a place of worship with intent to insult the religion of any class. It includes destroying, damaging or defiling any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion. On conviction, the offender shall be punished with imprisonment for a term which may extend to two years or with a fine, or with both.

Disturbing a religious assembly may result, on conviction, to an imprisonment for a term which may extend to one year, or with a fine, or with both (s 296). The same punishment awaits those who trespass on burial places with the intention of wounding the feelings, or insulting the religion of any person, with the knowledge that such a person would likely to be wounded or his religion insulted (s 297).

Section 298 lays down similar punishment for anyone who deliberately intends to wound the religious feelings of another by uttering any word, or making any sound in the hearing of that person; or making any gesture in the sight of that person, or places any object in the sight of that person.

Conclusion

Religion is a two-edged sword that cuts both ways. It can convert and subvert a society through the terror of dogmatism and intolerance. Or it can transform and inform a society by its diversity of wisdom and heritage. While faith to embrace religion cannot be legislated, the law is a useful tool to create a safe environment for mutual respect and acceptance of the diversity of religions. And this is exactly what our civil and penal legislations have successfully done. The law in this case acts as an effective facilitator for a truly enriched civil society where discourse about religion is both possible and pleasurable.

William Wan

Kelvin Chia Partnership

E-mail: william.wan@kcpartnership.com.